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Our Property Lawyers in Perth Can Provide Quality Representation and Sound Advice

From lease disputes to mortgagee repossessions, to strata disputes, regardless of why you may require a property dispute lawyer, Laird Lawyers are here to help 

Rely on an Experienced Property Dispute Lawyer

Property disputes, although unfortunate, commonly occur in the modern world. At Laird Lawyers, our team of property dispute lawyers are well adept to deal with these disputes, using experience and knowledge to navigate a wide range of common property disputes including: 

  • Lease Disputes;  
  • Mortgage Repossession;  
  • Strata;  
  • Nuisance affecting enjoyment of property;  
  • Caveat Removal & Extension;  
  • Dividing Fences; and 
  • Adverse Possession.  

 

Get in Touch With Our Team of Property Dispute Lawyers in Perth Today!

Whether you require representation in court or need sounding legal advice, our property dispute lawyers in Perth are here to assist. Conveniently located in Perth’s CBD, book a consultation with one of our property dispute lawyers today by calling 08 6271 3903. 

Why You May Require a Property Dispute Lawyer

There are many common reasons why you may require a property dispute lawyer. Disputes involving land are usually high value and the result of any dispute regarding a piece of land will have huge implications for the parties. 

In these circumstances, you should be using litigation specialists experienced in the multitude of property disputes, including disputes such as leases, mortgages, caveats, strata, nuisances impacting your use of land and people encroaching on your land. 


Lease Disputes

A lease is a binding contract setting out the rights and obligations of the lessor and lessee occupying the property for a set term. It is very important that parties understand their rights and obligations with respect to both commercial leases and residential tenancy agreements. 

Whilst the written agreement may detail the intentions of the parties, there are a number of pieces of legislation which impact on the terms of leases, depending on the type of property and use. These include: 

  • Residential tenancies; 
  • Retail shops; 
  • Retirement villages; and 
  • Various industrial uses. 

Leasing disputes are wide ranging, from failure to pay rent, payment of outgoings, damaging the property, make good at lease end, breach of lease terms, breach of the covenant of quiet enjoyment or failure to comply with legislative requirements. 

Mortgagee Repossession

When a mortgagor (borrower) fails to meet their financial obligations under their mortgage, the mortgagee (lender) has the power to sell the mortgaged property to recover the money owed. However, should the proceeds from the sale fail to meet the remaining debt, the mortgagee can sue the mortgagor personally for the difference. The terms governing the sale are generally found in the mortgage agreement, and where there is no relevant provision, the process can be found in the Transfer of Land Act 1893 (WA) as outlined below.  

Default and Notice Pursuant to the Transfer of Land Act 1893 (WA)

Once the mortgagor has defaulted on the mortgage, the mortgagee has one month before they are able to serve notice in writing of the mortgagor’s default, commencing the process for sale. There are a number of ways this notice may be served, including being personally delivered, being sent to by registered post, or being sent by fax.  The notice must contain a clear statement of the default, and defects in the notice will not necessarily render it obsolete.  If at this stage the default is remedied, meaning the overdue amount is paid, the sale process is halted and should the mortgagor later default again, further notice is required. If the default continues for one month following the notice, the mortgagee may sell the mortgaged land.  

Exercising the Power of Sale

Once the conditions discussed above have been met, the mortgagee may exercise their power of sale, however, there is a duty to exercise the power properly and in good faith.  Merely acting negligently or carelessly will not be enough to breach this duty.  There are a number of factors to be assessed by the Court in determining whether a mortgagee has discharged this duty. Among these include, but are not limited to, ensuring an independent bargain, no conflicts of interest, sufficient advertising of the sale and appointing a qualified agent.  The general principle is the mortgagee should endeavour to obtain the best price reasonably available.  

There is no requirement for the mortgagee to spend money to increase the value of the property and is they are not expected to take any risks.  If the mortgagee has not followed the process outlined herein the mortgagor may apply to the court to stop the mortgagee from effecting the sale (an injunction).  

However, where the mortgagor has discharged their duty, a court will generally not set aside the sale, even where the property is sold below market value.  Once the property is sold, the purchaser takes the title free from the previous mortgage and the mortgagee no longer has good title.  If sale proceeds exceed the debt owing the surplus will be returned to the mortgagor. 

Caveat Removal & Extension

A registered proprietor may apply for the Registrar to serve a caveator with a notice to the effect that the caveat will lapse unless, within 21 days after service of the notice on the caveator, the caveator obtains from the Supreme Court an order extending the operation of the caveat and lodges a copy of such order with the Registrar. In some circumstances, the registered proprietor can apply for a 14 day notice, though the 21 day notice is more common. 

A caveator who is served with a 21 day notice may apply to the Supreme Court ex parte for an order extending the operation of the caveat. The Court, if satisfied the claim has merit, may extend the caveat to a specified date, until further order or other orders the Court thinks fit.   

In order to satisfy the Court that the claim has merit the caveator must satisfy the court of two things:  

  • That there is a serious question to be tried as to the existence of a proprietary interest in the property in question; and 
  • That the balance of convenience favours the maintenance of the caveat. 

The Transfer of Land Act (1893) provides that a caveat can be lodged by a person claiming an estate or interest in land arising, inter alia, from a ‘charge under any unregistered instrument, document or writing’, generally meaning a right held by one person over the property of another person to secure a liability or debt.  

 Therefore, a caveat can only be lodged to protect a proprietary interest in land (which includes an equitable charge), a mere contractual or personal right does not confer an interest in land.  

The second stage, where most cases are won or lost, is whether the balance of convenience lies with extending the operation of the caveat.  

It would be unusual for the Court to order the removal of a caveat where there is an arguable case in support of the caveatable interest as the purpose of the caveat is to restrain the registered proprietor from dealing with the land in a way which will defeat or derogate from the caveator’s proprietary interest until the respective rights of the parties have been honoured or determined.  

The impacts on the relevant parties will be important. As stated in Coco C’Bay Association (Inc) v Paddison, whether the registered proprietor had entered into a transaction which would be jeopardised or delayed by the extension of the caveat is an important factor.  Conversely, the strength of the plaintiff’s claim or proprietary interest will be an important consideration in favour of the caveator. This part of the test will rely on the facts specific to each case and there is no exhaustive list setting out what will be considered in determining the balance of convenience.  

If a caveat lapses under a 21 day notice, the caveator cannot lodge another caveat without the consent of the registered proprietor or court order. 

Strata Disputes

Strata titles allow people to own part of a property and share ownership of the remaining areas (common areas). These common areas include areas such as gardens, stairwells, driveways, and car parks. Typical examples include apartments, units, and townhouses where you own a living space and share ownership of the common aArea, like driveways, gardens, and land. 

In Western Australia (WA), strata titles are controlled by the Strata Titles Act 1985. Any disputes arising under the Act are determined by the State Administrative tribunal. 

The most common strata disputes include breaches of by-laws, damage to a lot/common area, one occupant exclusively using common area and disagreement over strata company decisions. 

Unfortunately, the SAT cannot enforce SAT orders so, if one of the parties does not comply with a SAT order, you can apply to the Supreme Court to enforce the SAT orders (if it is non-monetary) or, if it is a monetary order, to the court with relevant jurisdiction.  

If those Court orders are not complied with, that party would be in contempt of Court, which would be punishable by fine or imprisonment. 

Nuisance Affecting Enjoyment of Property

People occupying land are entitled to the quiet enjoyment of that land. The cause of action of ‘nuisance attempts to balance the right of an owner to use their land freely with that of their neighbour to enjoy the use of his or her land without interference. 

The essence of a private nuisance is a substantial and unreasonable interference with rights in relation to or in connection with the use of the land of a particular individual.  

A property owner owes a duty to take reasonable care to prevent or abate potential nuisances on their property which are, or should be, known and prevent damage to their neighbour, taking into account available financial and other resources. 

The categories of nuisance are not exhaustive and can include flooding, spreading of fire, smoke, bright lights, encroaching roots/branches, smells, noise, spraying of pesticides and deliberate surveillance. 

Not every interference with the use and enjoyment of land is an actionable nuisance as the interference must be substantial or material. The interference is not substantial where the land is used for common and ordinary uses and the interference is no more than the average person in the neighbourhood may reasonably expect in the circumstances. 

If a nuisance has been committed, you have a right to damages or an injunction to restrain the nuisance. 

Dividing Fences

A common neighbourhood dispute is frequently about who pays for fixing a fence or, where one neighbour wants a new fence, paying to replace a fence. The Dividing Fences Act 1961 (WA) sets out who is liable for costs and what you do if your neighbour does not pay. 

Where neighbouring properties are not separated by a sufficient fence, each neighbour is liable to contribute equally to the construction of a dividing fence.  A sufficient fence is any fence prescribed by a local law as a sufficient fence or agreed to be sufficient or, if there is no local law, any substantial fence that is ordinarily capable of resisting the trespass of cattle and sheep.  

If your neighbour has not agreed to pay their share of the expense, you may issue a notice specifying the boundary to be fenced, the proposal for the fence and the kind of fence proposed to be constructed. 

  If your neighbour does not agree to the need for the fence, where it is to be constructed, or the kind to be constructed, you may apply to the Court for relevant orders within 21 days of giving the notice.  If your neighbour does not comply with the Court order or an agreement made in response to the notice with 3 months, you may construct the fence as agreed or ordered.  

If the fence has already been constructed, the person who paid can give noticed requiring the neighbour to pay their share. That other neighbour may then give notice disputing the need for the fence, claiming it is not desirable or the amount in the claim, in which case the person who paid will have to apply for an order from the Court. 

Adverse Possession

Adverse possession refers to the process whereby a party in continuous and exclusive possession of land without consent for 12 years, with the requisite intention to possess the land to the exclusion of all other parties, may extinguish the title held by the paper owner.  

A claim of adverse possession arises when the trespasser has satisfied the two elements of the doctrine for a continuous period of 12 years: 

  • Factual possession, which must be ‘open, not secret; peaceful, not by force; and adverse, not by consent of the true owner’; and 
  • Animus posidendi, which concerns the intention of the trespasser to possess and exclusively control the land.  

To establish a trespasser’s intention, there is no one conclusive act, although courts have placed weight on particular acts. The necessary intent is to be clear to the world to possess the land but not an intention to own. 

To negate the intention held by the trespasser, the concept of an implied licence arose where the intention of the true owner could be held to overrule the trespasser’s intention. The WA Supreme Court has found an implied consent as there was a tacit consent to the trespasser’s use of the land, where the use was not inconsistent with the use of the registered proprietor and the extent of the possession to not reach the requirement of exclusivity.